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TMI Blog2018 (2) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... any interest or penalty which are levied separately and also specifically stated wherever they occur. In view of that, respectfully following the decision of the Hon'ble Bombay High Court in the case of CIT Vs. Manoj Kumar Beriwal (2008 (6) TMI 204 - BOMBAY HIGH COURT), we hold that the order of CIT(A) cannot be sustained. As assessee has paid the admitted tax, the appeal is maintainable before the CIT(A). - I.T.A. No. 4/HYD/2016 - - - Dated:- 14-2-2018 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For The Assessee : Shri A.V. Raghu Ram, AR For The Revenue : Shri J. Siri Kumar, DR ORDER PER B. RAMAKOTAIAH, A.M. : This is an appeal by assessee against the order of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue as under: 5. We have considered the rival submissions and perused the material available on record. We find merit in the contentions of the learned counsel for the assessee that the first appellate authority ought to have seen that the assessee already paid tax before the date of filing of appeal and what was remaining was only interest and such interest was also paid on 30-4-2010. We find that the provisions of section 249(4) of the Act categorically stipulate payment of admitted tax on the returned income as a pre-requisite and mandatory condition for admission of an appeal. This pre-condition was made applicable to all the appellate authorities. The provisions of section 249(4) of the Act, as they stand subsequent to 1.4.1989 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e residential premises of the appellant, consequent to which the appellant filed his return of income by declaring a total income of ₹ 61,38,410/- on 16/10/2009 but without payment of taxes. As per the copy of the return of income filed, there is NIL advance tax payment, and NIL self assessment taxes paid by the appellant and the so the taxes payable were of ₹ 27,52,870/-. This amount includes net tax of ₹ 20,28,663/- and interest of ₹ 7,24,206/-. The assessment u/s. 143(3) was completed by the AO on 31/12/2009 by arriving total tax of ₹ 31,71,21,580/-. While taking the income as admitted in return, the AO wrongly adopted ₹ 1,79,790/- instead of ₹ 61,38,410/- as disclosed by the appellant. If this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st portion which has to be paid by the appellant by taking the completion of the assessment date, i.e. 31/12/2009. Hence, the appeal filed by the appellant were not admitted . 5. It was the contention of Ld. Counsel that assessee has correctly paid the taxes and also interest though not required by the time the appeal was considered for dismissal by the CIT(A)-1 earlier. It was further submitted that assessee is not aware how further taxes were to be paid as calculated by the Ld.CIT(A). It was submitted that as per the provisions of Section 249(4)(a), only admitted tax is to be paid and the admitted tax was already remitted, hence, CIT(A) should have considered the issue on merits. 6. Ld.DR, however, relied on the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been independently referred to under section 2(28)(a) of the Act. While considering the language of a section, the courts are bound to look at the definitions in the legislation for the purpose of interpreting and construing the expressions and words under the Act, the object being to avoid conflict and have a harmonious interpretation unless the context otherwise requires. For the purpose of section 249(4) of the Act, the deposit of tax, which is a condition precedent, does not include interest under sections 234B and 234C of the Act . 7.2. The Hon'ble Bombay High Court has considered the decision of the Hon'ble Supreme Court in the case of Harshad Shantilal Mehta Vs. Custodian Ors., [231 ITR 871] to take support in arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 115JAA [or section 115JD]] [ the assessee shall be liable to pay such tax together with interest [and fee] payable under any provision of this Act for any delay in furnishing the return or any default or delay in payment of advance tax, before furnishing the return and the return shall be accompanied by proof of payment of such tax [and interest]]. [ Explanation Where the amount paid by the assessee under this sub-section falls short of the aggregate of the tax [and interest as aforesaid, the amount so paid shall first be adjusted towards] the interest payable as aforesaid and the balance, if any, shall be adjusted towards the tax payable.] Even in this section, the definition of tax and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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